Saturday, July 03, 2010

KLISS, law and eDemocracy

I am roughly half way through my high level description of KLISS and the Legislative Enterprise Architecture that underpins it. It is the eve of the 4th of July independence day celebrations as I write this. It seems like an appropriate moment to step back from the detail a little and look at the bigger picture.

As a specialist in legal informatics, I cannot help but think of this historic time in terms of America's foundational documents, without which, the great enterprise known as "democracy and the rule of law" would simply not be possible. Missing my homeland of Ireland as I do from time-to-time; sitting in my home in Lawrence, Kansas; I cannot help but be drawn to the involvement of some generally forgotten Irish people in the events of 1776.

The Dunlap Broadside, the first printed copies of the declaration of independence, were produced by an Irishman John Dunlap in 1776. Of the eight foreign-born signatories of the declaration, three where Irish: James Smith, George Taylor and Matthew Thorntorn.

I cannot help but marvel at the fact that 27 of the original 200 or so copies still exist. So too, of course, does the *real* declaration in the form of the engrossed parchment prepared by Timothy Matlack. It was itself copied from the drafts produced by the founding fathers on, (probably) hemp paper of some description.

If you have been following along in this KLISS series you will probably be sensing where I am going with this. The drafts, the engrossed version, the promulgated copies...establishing the relationships between these artifacts is critical to establishing the laws/regulations of the land. It is critical because there can be - and there often is - ambiguity and room for disagreement as to what the law actually means. Law is a very complicated business after all. As a society, we can find ways to deal with that complexity as long as there is no ambiguity as to what the law actually says in terms of the text of the language itself. Once we have that, at least we are all arguing (or zealously advocating) different takes on the same thing. If we start arguing for different takes on different things, chaos reigns.

In the case of the declaration, thankfully, we are in good shape. The Dunlap broadsides are unambiguously copies, not the original. The hemp drafts of Thomas Jefferson are "just" drafts (fantastically important for historical research but not the real thing from a legal perspective). The real thing is the engrossed parchment prepared by Timothy Matlack, and signed by each of the founding fathers. That is why, for example, debates about the accuracy of the Jefferson memorial can be resolved. The placement of commas can be compared with the for-reference, original : the parchment. As for whether or not Jefferson intended "inalienable" rather than "unalienable", the intent is something we can and should be able to argue over in a civil society as long as we can look at the engrossed version and see one or the other unambiguously present.

The ancient Romans seemed to understand the importance of non-ambiguity of legal text well. Although they had early forms of paper, knew how to write on animal skin and knew how to make clay tablets, they chose to "engross" their foundational legal text : the Twelve tables by engraving them on ivory. Something that would withstand fire better than paper. Is harder to tamper with than a clay tablet, smudge resistant...

Removing ambiguities as to the for-reference original text of law is vital for another reason. Law, although it is not expressed mathematically or interpreted via formal logic, is very much based on mathematical concepts: induction, deduction, the law of the excluded middle, contravalence etc. In particular, it shares with mathematics the concept of axioms : foundational, self evident truths from which further truths can be derived and against which assertions of truth can be tested.

Historical documents show that both Jefferson and Adams were familiar with Euclid's Axioms, as was Abraham Lincoln. The Euclidian overtones in phrases like "We hold these truths to be self-evident" (Declaration of Independence) and "...dedicated to the proposition that all men are created equal." (Gettysburg address) are striking indeed.

It is very easy to arrive at bad results in mathematics if your starting assumptions – the axioms – are wrong. So too in Law. Law builds on itself just as mathematics builds on itself. It is accretive. Thanks to legal principles like stare decisis interpretation of the law is itself accretive because caselaw builds on caselaw...any ambiguities that creep into the vast self-supported edifice of law is bad for the rule of law. (I hold that to be self-evident:-)

Looking back at the history of law and the history of democracy, I think we have reached an inflection point. Something *big* is about to happen I suspect. I am not sure what shape it will take but here are the drivers as I see them:

The volume of law – including all the material used in adjudicating on and practicing law - is growing exponentially.

In practice, because of the sheer volume (and some other reasons) the copies of law used in the practice of law and cited in court are often "owned" by commercial third parties who amass all the material into private repositories.

Even if the text of legal materials is not owned/claimed by a commercial entity, the citation mechanisms can be. E.g. page numbers of case law publications or consolidations/re-statements of specific areas of law.

Now into this world, over the last two decades or so, comes the Internet and the Web in particular. It has so much to offer the world of law (and the world of democracy) that tensions between the "old world" and the new are mounting fast.

A quiet revolution is taking shape. Citizens are now armed with their knowledge of instantaneous publishing via Blogging or Google docs or Facebook. They are armed with knowledge of instantaneous search via Google or Bing. They are armed with knowledge of instantaneous revision with revision history via Wikipedia. They are armed with knowledge of hyperlinks for instantaneous follow-up of citations. They expect video to be instantly available on Youtube or blip.tv...When these citizens look at how laws/regulations are made today and how formal meetings are conducted today and how content that should be free (i.e. the laws/regulations of the land) is either hidden behind paywalls or only available in hard copy or buried deep inside large PDFs or 2 weeks out of date...

Something has got to give. Especially if you tell these citizens that they must abide by all these laws/regulations. Also, because they live in a participative democracy, they can get involved in shaping those laws and are entitled to free an unfettered access to the process of making law...The gulf between the feature-set of the Web-world for this sort of activity i.e. participation & publishing versus the existing "feature-set" of the status quo for law/regulation-making is so striking.

It seems to me that the world of law is somewhat like the worlds of news or music or of TV. For many years they fought against the Internet but have now finally started to embrace it. The Internet is an amazing force. So far the number of areas of human endeavor that have resisted its advances successfully stands at 0 and counting. I believe that the world of law/regulation-making is next up for a significant, world changing transition to the Web. It certainly is not as sexy as the world of music or sports news or TV shows but in a democracy, I cannot think of any one thing that is more important. I cannot think of anything that should be more free than the law and the ability to participate in its creation.

Although I am overwhelmingly positive in my outlook on what the Web will do for law and for democracy, there are some negatives. My primary concern is in the area of reference copies of the law. That concern I hope is evident from my opening remarks in this post. The reference copy of law is no longer etched onto ivory or engrossed onto animal skin. The sheer volume of law make that impossible anyway. In recent decades acid free paper and non-fugitive inks and master-copies kept in safes in the offices of Secretaries' of State, have substituted.

Nowadays, many law-producing entities such as legislatures/parliaments, agencies, courts are moving away from having heads of state sign or initial vellum sheets towards treating electronic legal artifacts as authentic. This, quite frankly, scares me as I believe I know enough about technology to know all the possible ways in which digital data can be compromised between producer and consumer and can degrade over time. (I talked about some of them earlier in this KLISS series.)

The folks who are making this transition to digital are are well intentioned and are seeking to take advantage of the Web to better serve their citizens. I'm all for that obviously. However, I do worry that the language of information technology creates incorrect assumptions in the minds of those not versed in the details of how digital machines actually work. A digital signature is really nothing like a real signature. An e-mail really is not like snail-mail at all because nothing ever gets sent. Everything is a copy – with all the issues that copies brings...The word "authentic" is so much more slippery in a digital world.

Having sounded that note of caution, let me end by saying I truly believe we live in profound times from the perspective of democracy. The Web can - and will - fundamentally change how we think about participative democracy and the process of making laws and regulations. We now have all the individual pieces of technology (I have mentioned most of them already in this KLISS series) we need. No new breakthrough algorithms or devices are required. We just need to assemble everything coherently. It is now a matter of design - not a matter of research.

We are on a fascinating road to a different world, we will get there via some disruptive technologies and disruptive memes. Not everyone will be best pleased but if the history of the internet tells us anything it is that resistance - once all the stars are aligned - is futile. Better to be part of it rather than fight against it. Better to help shape it and drive it forward than simply react to it.

In KLISS, I have been lucky enough to contribute to an initiative that strives to fully embrace technology for the betterment of democracy and the transparent making of law that it depends on.

I look forward to doing my bit going forward to ensure that the compelling vision of KLISS is realized and sharing the design and our experiences with anybody who is interested in it.